Federal Laws for "Felons in Possession of Firearms"
(18 U.S.C. § 922(g))
Explained by Nevada Criminal Defense Attorneys

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It is a federal crime for someone who has been convicted of a felony or domestic violence to then possess a firearm or ammunition. The penalty includes a possible prison sentence of ten years.

This is an article by our Nevada criminal defense attorneys on the "federal gun ban" law, which is also called the "federal firearm ban." Scroll down to read about the legal rules, possible defenses, and potential punishments.

Definition

Federal law prohibits people who have been convicted of certain crimes from ever possessing, shipping or receiving firearms or ammunition. These crimes include:

  • any crime that carries a maximum punishment of more than one year in prison, or
  • any crime of domestic violence

It does not matter in which states these convictions happened or how long ago they occurred . . . any person with at least one conviction for domestic violence or for a crime punishable by more than a year in prison may not have guns or ammunition.

Note that the federal gun ban applies to anyone who is been convicted of a crime that carries more than a year in prison whether or not that person actually served more than a year in prison. Pahrump criminal defense attorney Mike Castillo explains with an example:

Example: Josh lives in Reno, where he is convicted of the Nevada crime of selling drugs. The judge gives him three years of probation, which he serves successfully. Several years later Josh buys a gun to keep in his house to protect his family after a string of burglaries in the neighborhood. If Josh is ever caught, the U.S. Marshals Service could book him at the Washoe County Detention Center on federal charges of being a felon in possession of a firearm.

It is irrelevant in the above example that Josh never spent a day in prison for selling drugs. Selling drugs is a felony in Nevada, which means that the maximum punishment is more than one year. Consequently, Josh's drug sale conviction precludes him from legally possessing firearms because the conviction could have landed him in prison for more than one year.

Also note that with regard to domestic violence convictions, the federal gun ban applies whether or not the domestic violence is prosecuted as a misdemeanor or a felony. And in some cases, the federal gun ban may apply even if the conviction is not specifically for a domestic violence charge. Henderson criminal defense attorney Michael Becker describes how this can happen:

Example: Silas lives in Henderson, where he was arrested for shoving his girlfriend. As part of a plea bargain, Silas was convicted for the Nevada crime of battery, not the Nevada crime of battery domestic violence. Afterwards Silas is pulled over for a traffic stop, where the cop spots a rifle that Silas has kept in his car for years. If the cop researches Silas's criminal file and sees that the victim of the battery charge was a girlfriend, then Silas can then be booked at the Henderson Detention Center for possessing a firearm.

It does not matter in the above example that Silas was convicted only of the Nevada crime of battery. The fact that the victim was someone who made the situation a domestic violence matter is sufficient for the federal gun ban to apply.

Related laws

Defendants convicted of domestic violence or of crimes carrying more than one year in prison are not the only people barred from possessing guns or ammo under federal law. The following people also fall under the federal gun ban:

  • fugitives
  • people who have been adjudicated as a mental defective or who have been committed to a mental institution illegal aliens
  • drug addicts or frequent drug users
  • people who have been dishonorably discharged from the Armed Forces
  • former U.S. citizens who have renounced citizenship
  • a person who has a domestic violence restraining order against him/her which includes a finding that the person is a credible threat to the potential victim's physical safety

It is also illegal for someone to ship, transport or receive a gun or ammunition if he/she is under indictment for a crime punishable by more than one year in prison. The law is murky as to whether such a person under indictment may merely "possess" a gun. (18 U.S.C. § 922(n)).

For further information see our articles on federal fugitive laws and the criminal defense of immigrants in Nevada.

Exceptions

There are a few white-collar crimes carrying more than one year in prison that are not covered by the federal gun ban. These include felonies "pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices." Therefore, being convicted of one of these crimes does not bar the person from possessing firearms. (18 U.S.C. § 921(a)(20)(A))

Another exception is that the federal gun ban does not extend to convictions from foreign countries. (Small v. U.S., 544 U.S. 385 (2005)) But note that the ban does extend to convictions in U.S. territories such as Guam.

Nevada v. Federal law

Similar to federal law, it is a crime under Nevada law for a convicted felon to possess a firearm. But unlike federal law, it is not a crime in Nevada for a person convicted of misdemeanor domestic violence to possess a firearm. Learn more in our article on the Nevada crime of felons in possession of firearms For California law, visit our page on felon with a firearm law in California (Penal Code 29800).

Restoration of gun rights

It may be possible for people barred from having guns under the federal gun ban to have their gun rights restored. The federal gun ban does not extend to convictions that have been "expunged" or "set aside." Nor does the federal gun ban extend to people who have been"pardoned" or who have had their "civil rights restored." (8 U.S.C. §§ 921(a)(20) and (a)(33)(B)(ii))

In Nevada, the only way people can reclaim their right to bear arms is if they are granted an official government "pardon" that specifically restores their gun rights. Getting a record seal in Nevada does not restore a person's gun rights. Learn about the pardon process in our article on Nevada pardon law.

Defenses

Every defendant is different, and the best way to fight criminal charges always turns on the facts of the case. The following are just three possible defenses to federal allegations of wrongful possession of a firearm:

  • No gun possession. Perhaps the gun in question was in the possession of someone who had no connection to the defendant. Perhaps the defendant had no idea the gun was even there. As long as the U.S. Attorney's Office in Nevada cannot show that the defendant was in possession of a firearm, then the defendant committed no crime.
  • Police misconduct. If the cops may have overstepped their bounds when conducting searches and seizures in the case, the defense attorney may file a "Nevada motion to suppress evidence" asking the judge to disregard all evidence obtained from illegal police activity. If the motion is successful, then the prosecution may be left with too little evidence to sustain a conviction under the federal firearm ban.
  • No evidence. A court should not convict a defendant of a crime unless it finds that the prosecution proved the defendant's guilt beyond a reasonable doubt. If the defense attorney can show that the prosecution lacks sufficient incriminating evidence that the defendant violated the federal firearm ban, then the case should be dropped.

Note that it is not a defense that the defendant honestly was not aware of the federal firearm ban. People who know they were convicted and know they possessed a firearm are liable under the federal firearm ban whether or not they knew about the ban.

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Penalties

The punishment in Nevada federal court for violating 18 U.S.C. § 922(g) is a sentence of:

Federal cases are litigated in either the Lloyd D. George Federal Courthouse in Las Vegas or the Bruce R. Thompson Federal Courthouse in Reno.

Nevada penalties

The Nevada crime of felons in possession of firearms is punished a little less harshly than the federal law. It is prosecuted as a category B felony in Nevada, carrying one to six years in Nevada State Prison and maybe up to $5,000 in fines. (NRS 202.360)

Charged? Call . . . .

If you have been arrested for violating the federal firearm ban, call our Nevada federal criminal defense attorneys at 702-DEFENSE (702-333-3673) for a free meeting. Through zealous negotiation and litigation, we will do our all to try to get you the best resolution possible for your case.

To learn more see our pages on: Nevada federal criminal defense attorneys, Nevada motion to suppress evidence, Bruce R. Thompson federal courthouse, Nevada crime of battery, felony in Nevada, Nevada crime of selling drugs, Lloyd D. George federal courthouse, Henderson criminal defense attorney, Pahrump criminal defense attorney, Washoe County Detention Center, criminal defense of immigrants in Nevada, federal fugitive laws, record seal in Nevada, Nevada pardon law, category B felony in Nevada, Henderson Detention Center, U.S. Marshals Service, U.S. Attorney's Office; and California felon with a firearm law in Penal Code 29800.

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